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Kyla Lee is Awesome; BC's New ICBC Laws Not so Much…

Written by admin on . Posted in BC Civil Resolution Tribunal, Uncategorized.

Kyla Lee is a criminal lawyer practicing out of Vancouver well versed in issues relating to BC driving law and issues of fairness with administrative hearings.  Kyla, in a regular column she pens at VancouverisAwesome, had some scathing observations about the realities of BC’s Civil Rights Tribunal being fed ICBC injury claims and the inherent unfairness that British Columbians will face under this soon to be mandatory scheme.
I urge anyone interested in the subject to read the column in full.  The highlights include the following observation:
But the really disturbing part about this that no one has been paying much attention to is how the ability to prescribe by regulation flows together. Not only can regulations enacted by the BC Government increase the amount of the Civil Resolution Tribunal’s jurisdiction but the definition of minor injury can also be amended by regulation.
What this means is that if Government does not like the fact that too many claims are being paid out for a particular type of injury, say, a broken leg, it can call a broken leg a “minor injury” by enacting a quick regulation and suddenly those who have suffered a broken leg are left without a remedy in court. Instead, they are at the mercy of the Civil Resolution Tribunal.
And there are more troubling changes to the Civil Resolution Tribunal legislation that should have the public gravely concerned. The enabling statute has been amended to state explicitly that the tribunal is an expert tribunal in any area where the legislation states they have specialized expertise.
Care to hazard a guess about one area in which a tribunal that has heretofore not dealt with motor vehicle accident claims has specialized expertise? If you guessed motor vehicle accident claims, you are picking up on this disturbing trend.
The specialized expertise designation is of particular importance when considering the ability to appeal decisions of the tribunal. These appeals are known as judicial review.
Under the rules of administrative law, a tribunal with specialized expertise is supposed to be afforded substantial degrees of deference. This means that judges cannot overrule their decisions unless there is a clear error or a clearly unreasonable finding. Moreover, the court is required to defer to the tribunal’s own interpretation of the law in areas where it has specialized expertise. So if the tribunal says that “depression and anxiety” are “psychological conditions” that constitute minor injuries, a court cannot interfere with that finding unless it is unreasonable, even if there are other reasonable interpretations that say otherwise.
Now who is in charge of this ‘specialized tribunal‘?  BC’s Attorney General, the same person in charge of ICBC’s so-called ‘dumpster fire‘.  It does not take an overly critical lens to see concern when the person in charge of ICBC is also in charge of appointing ‘specialists’ subject to limited judicial oversight to adjudicate British Columbians ICBC disputes.

BC Government Passes Discriminatory and Arguably Unconstitutional "Minor" Injury Law

Written by admin on . Posted in ICBC Minor Injury Caps.

Well the BC Government did it.  Despite a written election promise not to strip British Columbians judicial rights to fix the ‘dumpster fire’ at ICBC they did exactly that.  With an extra dose of hypocrisy they expressly targeted those suffering collision related psychiatric conditions while celebrating “mental health week”.
NDP Election Lie
 
The BC NDP along with the Green Party went ahead and blamed “judges, lawyers and drivers“and passed Bill 20 into law.
Bill 20 Vote
 
 
 
 
Bill 20 breaks the above promise in just about every way possible.    In short Bill 20, along with Bill 22 that was passed earlier this week

This legislation, which will apply to all crashes after April 1, 2019 discriminates against people who sustain psychiatric and psychological conditions and will undoubtedly face constitutional challenge.  Today the BC Trial Lawyers published the below opinion suggesting legal challenge is imminent to this law and the saga of ICBC’s ‘dumpster fire’ and the government’s ill conceived response to it is far from over.
tlabc
 

Is Evidence of a Withdrawn Ticket Admissible in a Personal Injury Prosecution?

Written by admin on . Posted in Civil Procedure.

This week the BC Court of Appeal had the opportunity to decide if it is appropriate for a jury deciding fault for a crash in the context of a personal injury lawsuit can hear evidence that a motorist was issued a ticket by the police which was ultimately withdrawn before trial.
Unfortunately the BC Court of Appeal sidestepped the question finding that if such evidence is inappropriate, any harm caused by it can be cured by a warning to the Jury.
In today’s case (Jones v. Frohlick) the Plaintiff was injured in a collision and sued for damages.  A jury assessed the Plaintiff’s claim at $30,200 but then cut this down to $4,530 on the basis that they found the Plaintiff 85% at fault for the crash.
In the course of the trial the Defendant introduced evidence that the plaintiff was issued a ticket at the scene for failing to yield the right of way to the Defendant.  The ticket was subsequently withdrawn.  The Plaintiff sought a mistrial but this request was rejected.  In finding no mistrial was warranted and a warning to the jury about the significance of a withdrawn ticket was sufficient the BC Court of Appeal provided the following reasons:

[18]       In his ruling, the judge found that the evidence elicited from Mr. Jones on cross-examination regarding the traffic ticket was relevant as it was part of the narrative of the events that occurred at the scene of the Accident, and that any prejudice it may have caused Mr. Jones could be remedied by an instruction to the jury that they could not place any weight on the fact that the ticket was issued or that it was ultimately withdrawn or dismissed. He also noted that counsel for Mr. Jones would be able to cross-examine the attending officer about the ticket and its withdrawal or dismissal, which might even benefit Mr. Jones’ claim.

[19]       In his instructions to the jury, the judge stated:  

I will deal at the outset with the fact that you heard evidence that Mr. Jones was initially given a ticket at the scene of the accident and that the ticket was later dismissed or withdrawn. Neither the fact of the initial ticket nor the fact of the subsequent dismissal is relevant to your determination of liability here. Your obligation is to determine the issue based on the evidence that you heard in court and the legal principles that I will explain to you.

…

[25]       Mr. Jones raises an interesting issue of whether the traffic ticket was incorrectly characterized by the judge as “narrative” evidence given that the traffic ticket was unnecessary to explain the context or background of the events at the scene of the Accident as they unfolded, was disputed by him, and was subsequently withdrawn or dismissed. In support of these submissions he relies on R. v. Taweel, 2015 NSCA 107. He submits that, in these circumstances, the evidence was irrelevant and should not have been admitted as its prejudicial effect outweighed its probative value, or lack thereof, and it went to the ultimate issue on liability that was for the jury to decide.

[26]       However, even if the admission of that evidence was erroneous, that is not determinative of the appeal. The determinative issue is, assuming but not deciding that the impugned evidence was inadmissible, whether the prejudice caused by its admission could be remedied by an appropriate and adequate limiting instruction to the jury.

[27]       That brings me to the second ground of appeal: whether the admission of the impugned evidence was so prejudicial that even with an appropriate corrective instruction it would have caused a substantial wrong or would have resulted in a miscarriage of justice.

[31]       The impugned evidence in this case was not inflammatory. Nor was it in my view highly prejudicial as it was potentially open to both unfavourable and favourable inferences to Mr. Jones’ claim, the latter including that the ticket was withdrawn because it had no merit or, as was noted by the judge in his ruling, that it was misguided from the start. In these circumstances, I find no error in the judge’s exercise of his discretion in deciding that a corrective instruction was appropriate to alleviate the potential of any prejudice that may have been caused by the admission of the impugned evidence.

[32]       In my view, the instructions were also adequate. The direction to the jury that they should not consider the fact of the traffic ticket or its subsequent withdrawal or dismissal as part of their deliberations on liability, as it was not relevant to their determination, was clear and unambiguous, and therefore forceful. The instruction could not have been misunderstoods by the jury as permitting them to consider the impugned evidence, not only in assessing the evidence as a whole, but also in assessing the credibility of the witnesses and of Mr. Jones’ evidence in particular. As this Court stated in Paskall v. Scheithauer, 2014 BCCA 26 at para. 37:

…once it is determined that a corrective instruction was appropriate and adequate, the matter ends. This Court must assume that juries act judicially and responsibly, that is, the instructions of trial judges are followed “unless there is a clear basis for finding otherwise” (Hovianseian v. Hovianseian, 2005 BCCA 61 at para 25). It is not appropriate for this Court to speculate on whether the jury may have disregarded the judge’s corrective instruction.

[33]       The adequacy of the judge’s instructions is also evident in the final award by the jury. While undoubtedly not embraced by either side, it cannot be said that the award for non-pecuniary damages of $24,000 would not meet the test in Nance v. British Columbia Electric Railway, [1951] 3 D.L.R. 705 (P.C.) in that it was inordinately high or low, or that the total award of damages was “wholly disproportionate or shockingly unreasonable” (Young v. Bella, 2006 SCC 3 at para. 64).

[34]       In the result, I would dismiss the appeal.

BC Psychologists Speak Out Against ICBC Plan to Label Psychiatric Conditions as "Minor Injuries"

Written by admin on . Posted in ICBC Minor Injury Caps.

As recently discussed the BC Government, at the lobbying of ICBC, are trying to pass a law reducing the rights of British Columbians who are injured by distracted, impaired or otherwise at fault drivers.
As part of the overhaul ICBC is trying to label all psychological and psychiatric conditions as “minor” injuries, taking away the judicial rights of people who suffer these injuries in collisions and capping compensation for these.
Today the BC Psychological Association weighed in on these proposed laws and unsurprisingly are harshly critical.  In discussing the medical reality of psychological injuries the BCPA notes as follows –

The British Columbia Psychological Association opposes the inclusion of “a psychological or psychiatric condition” in the definition of “minor injury” in Bill 20.  We feel it will be detrimental to the health and care of British Columbians who sustain injuries in motor vehicle accidents.

Under Bill 20, any psychological or psychiatric condition arising from a motor vehicle accident is deemed to be minor, unless it has not resolved within 12 months from the MVA, and also meets, as yet undefined, prescribed criteria. 
BCPA disagrees and takes the positions that:

  • Psychological injuries are not minor injuries. Each individual is unique in their symptoms. 
     
  • It is very difficult to determine the twelve-month outcome of a psychological injury as it may be affected by pain, restrictions in functioning due to physical injuries, and pre-accident history, including prior history of depression, anxiety, substance use, adverse early childhood experiences, including neglect and trauma, poor coping styles, and cultural factors.
     
  • The duration of symptoms after an event is not an appropriate scientific measure of the severity of the psychological injury.
     
  • Psychological conditions may arise at different times after a collision, depending upon a number of factors. Many potentially severe psychological conditions, such as post-traumatic stress disorder, depression, and anxiety, may have an initial onset shortly after, or months after, a collision. 
     
  • Psychological conditions may appear to resolve, only to recur at a later date due to a change in circumstance, prolonged recovery, or a triggering event such as a return to work, a return to driving, or anniversary of the collision. 
     
  • Bill 20 gives Government the authority to make regulations with respect to assessment, diagnosis and treatment of minor injuries (including psychological injuries). Because of the unique circumstances of each individual, psychological injuries do not lend themselves to such an approach. Each individual must be assessed by a qualified psychology professional and prescribed the treatment that will best lead to an optimal recovery for them. 
     
  • If the appropriate treatment is not commenced as psychological symptoms manifest, it may lead to prolonged suffering, delayed return to work, impaired activities of daily living, and in increased treatment and wage loss costs in the long run.
     
  • Removing psychological and psychiatric conditions from the “minor injury” designation will help achieve the goal of people receiving better care and optimal recovery in the shortest time possible.
     
  • BCPA is also concerned with the proposed amendments to the Civil Resolution Tribunal Act.
     
  • Under the Act, the determination of whether an injury is “minor” and the entitlement to benefits from ICBC, is exclusively given to the Civil Resolution Tribunal.
     
  • Those suffering from psychological conditions are ill-equipped to deal with an appeal process on their own.
     
  • It is also unlikely that many of those people will be able to have the assistance of a lawyer in this process.
     
  • This process, online and/or in person, also puts at a disadvantage the elderly, people without computers or computer skills, those with poor English language skills, and those of limited means.
     
  • BCPA applauds this government’s efforts to address the mental health and addictions issues of British Columbians, but classifying psychological and psychiatric conditions as “minor” runs the risk of taking a step back in the treatment of psychological injuries arising from a car accident.

"Marginal Difference" Between Trial Result and ICBC Settlement Offer Results in Full Costs to Plaintiff

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff full trial costs after the Plaintiff failed to beat an ICBC settlement offer by a “marginal difference“.
In today’s case (Goguen v. Maddalena) the Plaintiff was injured in a collision the Defendant accepted fault for.  The Plaintiff proceeded to trial where he was awarded total damages of $174,360.84.
Prior to trial ICBC made a formal offer to settle for $175,000.  The Defendant argued that the Plaintiff should be deprived of some of his post offer costs for failing to beat the settlement attempt.  In finding that a “marginal difference” does not warrant such an outcome Madam Justice Forth provided the following reasons:

[39]         The plaintiff submits that the Defendant’s Offer was greater than the judgment amount by only $639.16, or approximately 0.5%. He argues that this marginal difference should afford little weight. In support, the plaintiff cites Saopaseuth v. Phavongkham, 2015 BCSC 45 at para. 74, in which Bernard J. noted that an award 2% greater than an offer to settle “suggests that little weight should be given to this factor”. Furthermore, in Zhao v. Yu, 2015 BCSC 2342 at para. 11, Baker J. held that an offer that exceeded an award by $1,800 was “of little significance in arriving at a decision about costs”.

[40]         The defendant submits that the Defendant’s Offer was only with respect to the plaintiff’s tort claim and that acceptance of the offer would have allowed the plaintiff to collect Part 7 ICBC benefits. Therefore, the Defendant’s Offer exceeds the trial award by a larger margin that what appears on its face.

[41]         The plaintiff, in reply, submits that he understood that any settlement offers made by the defendant were full settlements of both the tort claim and Part 7 claims against ICBC, and that at no time did defence counsel convey that Part 7 benefits would still be available in the event that the Defendant’s Offer was accepted.

[42]         With respect to Part 7 benefits, I note the first page of the Defendant’s Offer reads in part:

The Settlement Payment:

(a)     is offered after taking into account Part 7 benefits paid or payable, pursuant to section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force before June 1, 2007) and/or pursuant to section 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force on or after June 1, 2007);

[43]         Neither counsel have provided submissions on the implications of this settlement term or the quantum of Part 7 benefits that would have likely been available to the plaintiff. As a result, it would be speculative of me to attach significant weight to the submissions on these points.

[44]         Considering the marginal difference between the Defendant’s Offer and the ultimate award, this factor is of little significance in my determination…

[52]         Taken together, the factors pursuant to subrule 9-1(6) weigh in favor of the plaintiff. As a result, I exercise my discretion to award the plaintiff costs pursuant to R 9-1(5)(c). The plaintiff is entitled to his costs at Scale B.

New Insurance Law Looks to Give ICBC and Government Control Over Your Health Care Choices

Written by admin on . Posted in ICBC Minor Injury Caps.

I’ve written extensively about some of the troubling changes the government is proposing for collision victims through their ICBC legal reforms.  One topic that has yet to receive any press, and is perhaps as concerning as any, is the Government’s proposal to give ICBC and themselves total power over what therapies collision victims receive.
If you are injured in a crash by a careless driver you have the right to choose your own health care treatments.  If these expenses are deemed ‘reasonable’ you are entitled to be paid back the full cost of your expenses from the at fault driver’s insurance company (usually ICBC for BC based crashes).
This will all change if the NDP pass Bill 20.  Instead an injured collision victim will be stripped in their ability to recover actual ‘health care losses’ from ICBC and recovery is reduced only to an amount that the government establishes by regulation.  If your actual medical costs exceed this you are out of luck.  The government is stripping your right to sue for the difference.  Specifically proposed s. 82.2 reads as follows:

Liability limited for health care costs

82.2  (1) In this section, “health care loss” means a cost or expense incurred or to be incurred for health care provided by a health care practitioner.

(2) In an action for damages caused by a vehicle or the use or operation of a vehicle, a person may not recover, for a health care loss, an amount that exceeds one of the following:

(a) the amount, if any, that is established or determined for the particular health care loss under a regulation under section 45.1 (1) (a);

(b) in any other case, the value of the particular health care loss.

(3) If, for the purposes of this section, it is necessary to estimate the value of a health care loss, the value must be estimated according to the value the deferred health care loss has on the date of the estimate determined in accordance with subsection (2).

(4) This section applies only in relation to a health care loss resulting from an accident occurring on or after April 1, 2019.

If you are concerned about these changes contact your MLA and speak up now.  Bill 22 is set to pass into law imminently and time to persuade government to divert course is quickly running out.

ICBC "Minor Injury" Tribunal Designed To Be Unfair

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps, Uncategorized.

This week the BC Government is debating amendments to laws creating the Civil Resolution Tribunal to expand their powers to have mandatory jurisdiction over “minor” injury litigation.
As previously discussed, the word “minor” is being used to mislead the public.  The Government has defined the word to include many serious and disabling injuries including

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

In any event, the Civil Resolution Tribunal Amendment Act which may pass into law as early as next week takes away the right of British Columbians injured by careless drivers on our roadways to go to court.  Instead this law requires you to go to a Tribunal that will decide whether you have a “minor” injury and your level of compensation which will also be capped.
In debate this week the Government admits that their purpose in funnelling claims here is to create an unfair landscape.  They expressly state they hope to discourage the injured party from hiring a lawyer and to have you face an ICBC “specialist” in the dispute.
Here is our Attorney General expressly stating the intent of the legislation is to discourage people from hiring a lawyer when they are forced to litigate an injury claim:

The intent is to have this tribunal operate in most cases without counsel. You’ll see, in this section that we’re talking about, that we’re making an exception, saying: 

“Look, if you really want to bring a lawyer here, given the amount of money that you’re going to pay in legal fees and the amount that’s under dispute, which by definition under this act, is less than $50,000…. If you really want to bring a lawyer, you can bring a lawyer. But the amount of money that you’re going to spend on your lawyer is going to eat up a lot of your award, so it’s probably not to your interest.”

So, the Government has created a system where they don’t want you to have a lawyer.  And who do they want you to face in the Tribunal?  An ICBC “specialist.“.

Again, from our Attorney General

The intention is currently that an ICBC adjuster would attend. ICBC would be the respondent to the claim. So when someone who has been in an accident doesn’t agree with what the adjuster has said their claim is worth…. they can go to the civil resolution tribunal to have that dispute heard. There has to be someone on the other side saying here’s what we think the claim is worth. Currently, ICBC’s thinking is…. that that person would be an adjuster….They are specialists in determining the value of claims.

So those people would be attending the hearing, making representations to the tribunal about what their position is — what the claim is worth. The person who was in the accident makes representation, with their medical records and their costs and so on, to the tribunal about what they think the claim is worth. Then the tribunal would make a decision

So there you have it.  The purpose of the government’s new law is to reduce your right to compensation when injured by a distracted or impaired driver and if you don’t like it to have your dispute heard, without a lawyer, facing an insurance company paid for “specialist”.

 

New Bill Looks to Give ICBC Immunity From the Courts

Written by admin on . Posted in ICBC Minor Injury Caps.

This week the BC Government introduced two bills that look to give ICBC more power at the expense of British Columbians.  The Insurance (Vehicle) Amendment Act and the Civil Resolution Tribunal Amendment Act.
As previously discussed, the first Bill looks to label almost every injury suffered by collision victims as “minor” stripping people’s right to compensation.  Included in the Government’s definition of ‘minor’ injury are:

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

The government is trying to sell this to the public by arguing it is fair to strip the rights of collision victims with the above injuries in order to give all people injured in collisions (including the at fault motorist) more generous rehabilitation benefits.  The Devil is in the details however and included in the proposed legal reforms is ICBC judicial immunity.
If ICBC refuses to pay these so-called more generous benefits the law gives them judicial immunity.  Division 7 of the Civil Resolution Tribunal Amendment Act takes away the public’s right to challenge ICBC’s denial of accident benefits in court and instead requires “the determination of entitlement to benefits paid or payable” to go through a Tribunal not run by judges but instead Government appointed bureaucrats.
Before the Government passes these changes  into law a fundamental question is do you trust ICBC so much that they should be granted judicial immunity?  If not, please speak up to your MLA immediately as the window to do so is short.

Canadian Bar Association Comes Out Swinging Against Proposed Law Stripping Judicial Access For British Columbians

Written by admin on . Posted in ICBC Minor Injury Caps.

The current BC Government talks tough about impaired and distracted driving.  Instead of taking action against poor drivers, however, the Government has inexplicably introduced a Bill targeting the rights of those injured by negligent drivers.  Not only does the Bill take away the judicial rights of British Columbians, it also takes away their common law compensatory rights.
In a move that is medically baffling the proposed law calls a host serious medical conditions including major depression, PTSD, Anxiety Disorders and Chronic Pain Symptoms “minor injuries“.
The BC Branch of the Canadian Bar Association is the latest to speak against this proposed law.  In a press release issued today the CBABC raises the following concerns.  Hopefully the Government is listening.

CBABC President Bill Veenstra calls on Attorney General David Eby and Premier John Horgan to withdraw provisions in proposed new legislation introduced yesterday that restrict the rights of citizens to receive full and fair compensation and create new, exclusive resolution processes for disputes outside of the Courts.
“The approach that the government is taking punishes victims of negligence and does not reflect the many ways that our members and others have identified as data-driven, innovative solutions to address the Corporation’s multiple years of over-extending its liabilities while providing profits to government,” said President Veenstra.
“ICBC for many years was extremely profitable, resulting in government taking funds out of ICBC that never should have been taken out. The shift from very profitable to very unprofitable has many reasons beyond an increased number of collisions. ICBC will not be moved to a profitable or self-sustaining model without addressing these systemic reasons.”
“Of significant concern are the proposed changes to the ability of an insured person to resolve disputes about what is fair and adequate for their injuries through the courts. The Civil Resolution Tribunal is a relatively new organization with very little experience in personal injury matters. Its adjudicators have short tenures and thus limited independence from government, and the Tribunal is responsible to the same Minister as ICBC,” said Veenstra. “The proposed threshold of $50,000 is substantially greater than the CRT’s current threshold of $5,000 for small claims. Our courts do a good job of resolving disputes fairly, and trial dates are available within a few months for those plaintiffs who have straightforward claims and whose injuries have resolved. The government’s emphasis on speedy resolution through the CRT fails to account for the importance of ensuring that injuries have resolved before any decision is made on compensation.”
“There is no question that change needs to happen at ICBC, to make it accountable and ensure that its business management decisions are made in a transparent way. Providing the Corporation with an open avenue to limit how much someone can receive to cope with the impact of their injuries only punishes BC citizens without any consequences for the Corporation not improving its own management practices. The people of BC deserve better from their insurer, and from their Government,” said Veenstra.
 

NDP Introduces ICBC Bill Saying "Psychiatric Conditions" Are "Minor Injuries"

Written by admin on . Posted in ICBC Minor Injury Caps.

Today the BC Government introduced their so called ‘minor’ injury Bill strippng the judicial rights of collision victims.
Despite their media soundbites to the contrary, the Government is calling many serious injuries “minor” even those that can have permanent consequences.
Included in their open ended list of “minor injuries” are “Psychological Conditions, Psychiatric Conditions and Pain Syndromes“.  Pain Syndromes by definition are long lasting and debilitating mental health conditions.
On its plain reading this definition of “minor” captures

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

The Bill, if passed into law, will strip the judicial and compensatory rights to everyone in BC who suffers a “minor injury” at the hands of a careless driver after April 1 2019.  All this so careless drivers can pay less for their insurance.   Below is the government’s open-ended list of everyone who will be captured by this bill designed to beef up ICBC’s bottom line.  Note they can grow it whenever they want by ‘prescribing’ more injuries to the list and by prescribing criteria to call even permanent injuries minor –

“minor injury” means a physical or mental injury, whether or not chronic, that

(a) subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b) is one of the following:

(i) an abrasion, a contusion, a laceration, a sprain or a strain;

(ii) a pain syndrome;

(iii) a psychological or psychiatric condition;

(iv) a prescribed injury or an injury in a prescribed type or class of injury;

“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;

“serious impairment”, in relation to a claimant, means a physical or mental impairment that

(a) is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and

(b) meets prescribed criteria.

(2) Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if

(a) the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and

(b) the injury

(i) results in a serious impairment or a permanent serious disfigurement of the claimant, or

(ii) develops into an injury other than an injury within the definition of “minor injury” in subsection (1).

(3) An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.

(4) For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.